Rehabilitation of
Offenders (Jersey) Law 2001
A LAW to provide for the rehabilitation of certain offenders who have not
been reconvicted, within a certain period of time, for a serious offence, to
penalize the unauthorized disclosure of spent convictions, to amend the law of
defamation and for connected purposes
Commencement [see endnotes]
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“1935 Loi”
means the Loi appliquant
à cette Ile certaines
des dispositions de l’Acte de Parlement intitulé Children and Young Persons Act 1933 confirmed by Order of His
Majesty in Council of the 21st day of February 1935;
“1969 Law”
means the Children (Jersey) Law 1969;
“1994 Law”
means the Criminal Justice (Young Offenders) (Jersey) Law 1994;
“2014 Law”
means the Criminal
Justice (Young Offenders) (Jersey) Law 2014;
“Air Force Act”
means the Air Force Act 1955 of the United Kingdom as it has effect in Jersey
by virtue of any Order in Council;
“Army Act”
means the Army Act 1955 of the United Kingdom as it has effect in Jersey
by virtue of any Order in Council;
“attendance centre
order” means an order under Article 23 of the 1969 Law[1] or Article 8 of the 1994 Law;
“binding over order”
means an order for the provisional release of an offender under Article 2
of the Loi
(1937) sur l’atténuation des peines et sur la mise en
liberté surveillée;
“corresponding
court-martial punishment” means a punishment awarded under section 71A(3)
or (4) of the Army Act, section 71A(3) or (4) of the Air Force Act or section
43A(3) or (4) of the Naval Discipline Act;
“enactment”
includes an enactment of the United Kingdom which has effect in Jersey, whether
by Order in Council or otherwise;
“lesser sentence”
means any sentence other than a sentence excluded from rehabilitation;
“Naval Discipline
Act” means the Naval Discipline Act 1957 of the United Kingdom as it
has effect in Jersey by virtue of any Order in Council;
“official record”
means a record –
(a) kept,
for the purposes of its functions, by any court or public authority in Jersey
or by the States of Jersey Police Force or the Honorary Police or kept, in Jersey
or elsewhere, for the purposes of any of His Majesty’s forces; and
(b) containing
information about persons convicted of offences;
“probation order” means an order under the Loi
(1937) sur l’atténuation des peines et sur la mise en
liberté surveillée made on the condition described
in Article 3 thereof;
“proceedings before
a judicial authority” means –
(a) proceedings
before any court of law; or
(b) proceedings
before any tribunal, body or person having power –
(i) by
virtue of any enactment or rule of customary law or practice,
(ii) under
the rules governing any association, institution, profession, occupation or employment, or
(iii) under
any provision of an agreement providing for arbitration with respect to any
questions arising under the agreement,
to determine any question
affecting the rights, privileges, obligations or liabilities of any person, or
to receive evidence affecting the determination of any such question;
“rehabilitation”
means rehabilitation in accordance with and for the purposes of this Law;
“sentence”
includes any order made by a court in respect of the conviction of a person of
any offence or offences, other than –
(a) an
order for committal; or
(b) any
other order made –
(i) in
default of payment of any fine or other sum adjudged to be paid by or imposed
on a conviction, or
(ii) for
want of sufficient distress to satisfy any such fine or other sum;
“sentence excluded
from rehabilitation” means –
(a) a
sentence of imprisonment for life;
(b) a
sentence of custody for life;
(c) a
sentence of preventive detention;
(d) a
sentence of imprisonment, detention in a young offender institution, youth
custody or corrective training for a term exceeding 30 months;
(e) a
sentence of detention during His Majesty’s pleasure or a sentence of
detention for a term exceeding 30 months passed under Article 4 of
the 1935 Loi, Article 13 of the 1969 Law, Article 5(4) of
the 1994 Law or Article 5(3) of the 2014 Law or a corresponding
court-martial punishment;
“service
disciplinary proceedings” means any of the following –
(a) any
proceedings under the Army Act, the Air Force Act or the Naval Discipline Act (whether
before a court-martial or before any other court or person authorized
thereunder to award a punishment in respect of any offence);
(b) any
proceedings under any Act previously having effect in Jersey corresponding to
any of the Acts mentioned in sub-paragraph (a);
“specified
information” means information imputing that a named or otherwise
identifiable rehabilitated living person has committed or been charged with or
prosecuted for or convicted of or sentenced for any offence which is the
subject of a spent conviction.[2]
(2) In
this Law, a reference to a sentence of detention for any term without more
means a sentence passed under Article 4 of the 1935 Loi, Article 13
of the 1969 Law[3], Article 5(4) of the 1994 Law, or Article 5(3) of
the 2014 Law.[4]
(3) For
the purposes of this Law, any finding that a person is guilty of an offence in
respect of any act or omission which was the subject of service disciplinary
proceedings shall be treated as a conviction and any punishment awarded or
order made by virtue of Schedule 5A to the Army Act or the Air Force Act or
by virtue of Schedule 4A to the Naval Discipline Act in respect of any
such finding shall be treated as a sentence.
(4) In
this Law, any reference to a conviction, however expressed, includes a
reference –
(a) to a
conviction by or before a court outside Jersey; and
(b) to
any finding, other than a finding linked with a finding of incapacity under
Part 8 of the Mental
Health (Jersey) Law 2016, in any criminal proceedings that a person
has committed an offence or done the act or made the omission charged.[5]
(5) In
this Law, any reference to circumstances ancillary to a conviction shall be construed
as a reference to any of the following –
(a) the
offence or offences which were the subject of that conviction;
(b) the
conduct constituting that offence or those offences; and
(c) any
process or proceedings preliminary to that conviction, any sentence imposed in
respect of that conviction, any proceedings, whether by way of appeal or
otherwise, for reviewing that conviction or any such sentence, and anything
done pursuant to, or undergone in compliance with, any such sentence.
(6) In
this Law, a reference to an enactment, is a reference to that enactment as
amended from time to time and includes a reference to that enactment as
extended or applied under another enactment, including another provision of
this Law.
2 General rule for rehabilitation
(1) Rehabilitation
shall only apply to a conviction, whether before or after this Law comes into
force, for an offence for which a lesser sentence is imposed.
(2) An
individual shall be rehabilitated in respect of such a conviction
if –
(a) during
the rehabilitation period applicable to the conviction, there is not imposed on
the individual, for a subsequent conviction, a sentence excluded from
rehabilitation; and
(b) the
individual has served or otherwise undergone or complied with any sentence
imposed on the individual in respect of such conviction.
(3) Where
the conditions in paragraph (2) are satisfied, the individual shall be
rehabilitated in respect of the conviction and the conviction treated as
spent –
(a) after
the end of the rehabilitation period applicable to the conviction; or
(b) where
that period ended before this Law comes into force, after this Law comes into
force.
(4) An
individual shall not be treated as having failed to satisfy the condition in
paragraph (2)(b) by reason only of –
(a) the failure
to pay a fine or other sum adjudged to be paid by or imposed on a conviction,
or breach of a condition of a binding over order;
(b) the
breach of any condition or requirement applicable in relation to a sentence
which renders the person to whom it applies liable to be dealt with for the
offence for which the sentence was imposed, or, where the sentence was a
suspended sentence of imprisonment, liable to be dealt with in respect of that
sentence (whether or not, in any case, he or she is in fact so dealt with); or
(c) a failure
to comply with any requirement of a suspended sentence supervision order.[6]
3 Rehabilitation periods for particular sentences
(1) The
rehabilitation period applicable to a sentence specified in the first column of
the table below is the period specified in the second column of that table in
relation to that sentence in the case of any person or any particular
description of person.
|
Sentence
|
Rehabilitation period
|
|
1 An
absolute discharge.
|
6 months from the conviction date.
|
|
2 A
binding over order.
|
Whichever is the longer of one year from the conviction date or
the period beginning with that date and ending when the binding over order
ceases or ceased to have effect.
|
|
3 An
attendance centre order.
|
The period beginning with the conviction date and ending one
year after the date on which the attendance centre order ceases or ceased to
have effect.
|
|
4 A
sentence, for a term not exceeding 6 months, of
detention.
|
3 years from the conviction date.
|
|
5 A
custodial order, where the maximum period of detention specified in the order
is 6 months or less, under Schedule 5A to the Army Act or the Air Force Act
or under Schedule 4A to the Naval Discipline Act.
|
3 years from the conviction date.
|
|
6 Any
sentence of detention in respect of a conviction in service disciplinary
proceedings.
|
Person aged 18 or more: 5 years from the conviction date.
Person aged less than 18: 2½ years from the
conviction date.
|
|
7 A
fine, or any other sentence subject to rehabilitation under this Law, not
being a sentence within any other item in this column of this table.
|
Person aged 18 or more: 5 years from the conviction date.
Person aged less than 18: 2½ years from the
conviction date.
|
|
8 A
sentence, for a term exceeding 6 months but not exceeding 30
months, of detention.
|
5 years from the conviction date.
|
|
9 A
probation order.
|
Person aged 18 or more: 5 years from the conviction date.
Person aged less than 18: whichever is the longer of
2½ years from the conviction date or a period beginning with that date
and ending when the probation order ceases or ceased to have effect.
|
|
10 A
sentence, for a term not exceeding 6 months, of
imprisonment, detention in a young offender institution or youth custody.
|
Person aged 18 or more: 7 years from the conviction date.
Person aged less than 18: 3½ years from the
conviction date.
|
|
11 A
custodial order, where the maximum period of detention specified in the order
is more than 6 months, under section 71AA of or Schedule 5A to the Army Act
or the Air Force Act or under section 43AA of or Schedule 4A to the Naval
Discipline Act.
|
7 years from the conviction date.
|
|
12 A
sentence of dismissal from His Majesty’s service.
|
Person aged 18 or more: 7 years from the conviction date.
Person aged less than 18: 3½ years from the
conviction date.
|
|
13 A
sentence of cashiering, discharge with ignominy or dismissal with disgrace
from His Majesty’s service.
|
Person aged 18 or more: 10 years from the conviction date.
Person aged less than 18: 5 years from the conviction date.
|
|
14 A
sentence, for a term exceeding 6 months but not exceeding 30
months, of imprisonment, detention in a young offender institution,
youth custody or corrective training.
|
Person aged 18 or more: 10 years from the conviction date.
Person aged less than 18: 5 years from the conviction date.
|
|
Sentence which may no longer be
passed
|
Rehabilitation period
|
|
15 Birching.
|
One year from the conviction date.
|
|
16 A
fit person order under Article 24 of the 1969 Law.
|
Whichever is the longer of one year from the conviction date or
the period beginning with that date and ending when the order ceases or
ceased to have effect.
|
|
17 An
approved school order under Article 7 of the 1935 Loi or under
Article 24 of the 1969 Law[7].
An order under Article 13 of the 1935 Loi.
|
The period beginning with the conviction date and ending one
year after the date on which the order ceases or ceased to have effect.
|
|
18 An
order for detention in or committal to a detention centre or a young offenders’
centre under Article 19 or 20 of the 1969 Law.
|
3 years from the conviction date.
|
|
19 A
sentence of Borstal training.
|
7 years from the conviction date.[8]
|
(2) For
the purpose of determining the rehabilitation period applicable to a person by
virtue of the table above, the person’s age shall be taken at the
conviction date.
(3) Where,
in respect of a conviction, an order was made imposing on the person convicted
any disqualification, disability, prohibition or other penalty, the
rehabilitation period applicable to the sentence shall be a period beginning
with the conviction date and ending on the date on which the disqualification,
disability, prohibition or penalty, as the case may
be, ceases or ceased to have effect.
(4) The
States may by Regulations substitute or amend the table in paragraph (1)
for the purpose of re-arranging the table or of adding a description of
sentence and specifying the rehabilitation period applicable to that sentence,
and may specify different rehabilitation periods in the cases of persons of
different ages.
(5) For
the purposes of this Article –
(a) “sentence
of imprisonment” includes a sentence of penal servitude or hard labour,
and “term of imprisonment” shall be construed accordingly;
(b) consecutive
terms of imprisonment or of detention and terms that are wholly or partly
concurrent, being terms of imprisonment or detention imposed in respect of
offences of which a person was convicted in the same proceedings, shall be
treated as a single term;
(c) no
account shall be taken of any subsequent variation, made by a court in dealing
with a person in respect of a suspended sentence of imprisonment, of the term
originally imposed; and
(d) a
sentence imposed by a court outside Jersey shall be treated as a sentence of that
one of the descriptions in this Article which most nearly corresponds to the
sentence imposed.[9]
4 Rehabilitation period applicable to a conviction
(1) Subject
to Articles 5 and 6, where only one lesser sentence is imposed for a
conviction, the rehabilitation period applicable to the conviction is that
which is applicable to that sentence in accordance with Article 3.
(2) Subject
to Articles 5 and 6, where 2 or more lesser sentences are imposed for a
conviction (whether or not in the same proceedings),
the rehabilitation period applicable to the conviction is that which is
applicable to each of those sentences, if the same, or, if different, the
longest of the rehabilitation periods applicable to those sentences.
5 Effect of further conviction within rehabilitation period
(1) This
Article applies where, during the rehabilitation
period applicable to a conviction (the “first
conviction”) –
(a) the
person is convicted of a further offence (the “second conviction”)
and the conviction is not –
(i) a
conviction in service disciplinary proceedings for an offence listed in the Schedule,
or
(ii) a
conviction by or before a court outside Jersey of an offence in respect of
conduct which, if it had taken place in Jersey, would not have constituted an
offence under the laws of Jersey; and
(b) a
sentence excluded from rehabilitation is not imposed on the person in respect
of the second conviction.
(2) Subject
to paragraph (3), if the rehabilitation periods applicable to the first
conviction and the second conviction would end on different dates, the period
which would end first shall be extended so as to end
on the same date as the other period.
(3) The
rehabilitation period applicable to a conviction shall not be extended
where –
(a) only
one lesser sentence was imposed for the other conviction; and
(b) the
rehabilitation period applicable to that sentence was determined in accordance
with Article 3(3).
(4) For
the purposes of paragraph (2), in determining the rehabilitation period
applicable to a conviction for which 2 or more lesser sentences are imposed,
there shall be disregarded any rehabilitation period applicable to a sentence
in accordance with Article 3(3).
6 Effect of sentence for breach of binding over or probation after end
of rehabilitation period
(1) This
Article applies where a binding over order or probation order was imposed for a
conviction and, after the end of the rehabilitation period applicable to the
conviction in accordance with Article 4, the person is dealt with, in consequence
of a breach of the binding over order or probation order, for the offence for
which such order was imposed.
(2) Without
prejudice to Article 4(2), if the rehabilitation period applicable to the
conviction in accordance with that paragraph, taking into account any sentence
imposed when the person is dealt with for the breach, ends later than the
rehabilitation period previously applicable to the conviction, the person shall
be treated as not having become rehabilitated in respect of the conviction, and
the conviction shall be treated as not having become spent, before the end of
the new rehabilitation period.
7 Effect of rehabilitation: subsequent judicial proceedings
(1) Subject
to Articles 8 and 9, a person rehabilitated in respect of a conviction
shall be treated for all purposes in law as a person who has not committed or
been charged with or prosecuted for or convicted of or sentenced for the
offence which was the subject of that conviction.
(2) Subject
to Articles 8 and 9, but notwithstanding any enactment or rule of
customary law to the contrary –
(a) no
evidence shall be admissible in any proceedings before a judicial authority to
prove that a person who has become a rehabilitated person has committed or been
charged with or prosecuted for or convicted of or sentenced for any offence
which was the subject of a spent conviction; and
(b) a
person shall not, in any such proceedings, be asked and, if asked, shall not be
required to answer, any question relating to his or her past which cannot be answered
without acknowledging or referring to a spent conviction or spent convictions
or any circumstances ancillary to such convictions.
8 Limitations on rehabilitation: subsequent judicial proceedings
(1) Nothing
in Article 7 shall affect –
(a) any
right of His Majesty, by virtue of his Royal prerogative or otherwise, to grant
a free pardon, to quash any conviction or sentence, or to commute any sentence;
(b) the
enforcement by any process or proceedings of any fine or other sum adjudged to
be paid by or imposed on a spent conviction;
(c) the
issue of any process for the purpose of proceedings in respect of any breach of
a condition or requirement applicable to a sentence imposed in respect of a
spent conviction; or
(d) the
operation of any enactment by virtue of which, in consequence of any
conviction, a person is subject, otherwise than by way of sentence, to any
disqualification, disability, prohibition or other penalty the period of which
extends beyond the rehabilitation period applicable to the conviction.[10]
(2) Nothing
in Article 7 shall affect the determination of any issue, or prevent the
admission or requirement of any evidence, relating to a person’s previous
convictions or to circumstances ancillary to them –
(a) in
any criminal proceedings before a court in Jersey, including any appeal or
reference in a criminal matter;
(b) in
any service disciplinary proceedings or in any proceedings on appeal from any
service disciplinary proceedings;
(c) in
any proceedings relating to adoption, the marriage of any minor or the
formation of a civil partnership of any minor, the exercise of the inherent
jurisdiction of the Royal Court with respect to minors or the provision by any
person of accommodation, care or schooling for minors;
(d) in
any proceedings brought under the Children
(Jersey) Law 2002 or the Day
Care of Children (Jersey) Law 2002;
(e) in
any proceedings in which the person is a party or a witness, provided that,
notwithstanding Article 7, on the occasion when the issue or the admission
or requirement of the evidence falls to be determined, the person consents to
the determination of the issue or, as the case may be, the
admission or requirement of the evidence.[11]
(3) Subject
to paragraph (4), if, at any stage in any proceedings before a judicial
authority in Jersey, the authority is satisfied, in the light of any
considerations which appear to it to be relevant, including any evidence which
has been or may be thereafter put before it, that justice cannot be done in the
case except by admitting or requiring evidence relating to a person’s
spent convictions or to circumstances ancillary to such convictions, the
authority –
(a) notwithstanding
Article 7, may admit or, as the case may be, require
the evidence in question; and
(b) may,
in determining any issue to which the evidence relates, disregard Article 7
so far as necessary.
(4) Paragraph (3)
does not apply to proceedings –
(a) to
which, by virtue of paragraph (2) or any Regulations made under paragraph (5),
Article 7 does not apply; or
(b) to
which Article 9 applies.
(5) The
States may by Regulations exclude the application of Article 7 in relation
to any proceedings specified in the Regulations, other than proceedings to
which Article 9 applies, to such extent and for such purposes as may be so
specified.
(6) No
order made by a court with respect to any person otherwise than on a conviction
shall be included in any list or statement of that person’s previous
convictions given or made to any court which is considering how to deal with the
person in respect of any offence.
9 Defamation actions
(1) For
the purposes of this Article, “defamation action” means an action
for libel or slander begun after this Law comes into force by a rehabilitated
person and founded upon the publication of any matter imputing that the
plaintiff has committed or been charged with or prosecuted for or convicted of
or sentenced for an offence which was the subject of a spent conviction.
(2) Nothing
in Article 7 shall affect a defamation action where the publication
complained of took place before the conviction in question became spent.
(3) Paragraphs (4)
to (8) apply to a defamation action where the publication complained of took
place after the conviction in question became spent.
(4) Subject
to paragraphs (6) and (7), nothing in Article 7 shall prevent the
defendant in a defamation action to which this paragraph applies from relying
on any defence of justification or fair comment or of absolute or qualified
privilege which is available to the defendant or restrict the matters he or she
may establish in support of any such defence.
(5) Without
prejudice to the generality of paragraph (4), where, in any such action,
malice is alleged against a defendant who is relying on a defence of qualified
privilege, nothing in Article 7 shall restrict the matters the defendant
may establish in rebuttal of the allegation.
(6) A
defendant in any such action shall not, by virtue of paragraph (4), be
entitled to rely upon the defence of justification if the publication is proved
to have been made with malice.
(7) Subject
to paragraph (8), a defendant in any such action shall not, by virtue of paragraph (4),
be entitled to rely on any matter or adduce or require any evidence for the
purpose of establishing the defence that the matter published constituted a
fair and accurate report of judicial proceedings if it is proved that the
publication contained a reference to evidence which was ruled to be
inadmissible in the proceedings by virtue of Article 7.
(8) Paragraph (4)
shall apply without the qualifications imposed by paragraph (7) in
relation to –
(a) any
report of judicial proceedings contained in any bona fide
series of law reports which does not form part of any other publication and
consists solely of reports of proceedings in courts of law; and
(b) any
report or account of judicial proceedings published for bona fide
educational, scientific or professional purposes, or
given in the course of any lecture, class or discussion given or held for any
of those purposes.
10 Effect of rehabilitation: other circumstances
(1) Subject
to Regulations made under paragraph (3), where a question seeking
information with respect to a person’s previous convictions, offences, conduct or circumstances is put to the person or to any
other person otherwise than in proceedings before a judicial
authority –
(a) the
question shall be treated as not relating to spent convictions or to any
circumstances ancillary to such convictions, and the answer to the question may
be framed accordingly; and
(b) the
person questioned shall not be subjected to any liability or otherwise
prejudiced in law by reason of any failure to acknowledge or disclose a spent
conviction or any circumstances ancillary to such a conviction in the
person’s answer to the question.
(2) Subject
to Regulations made under paragraph (3) –
(a) any
obligation imposed on any person by any rule of law or by the provisions of any
agreement or arrangement to disclose any matters to any other person shall not
extend to requiring the person to disclose a spent conviction or any
circumstances ancillary to such a conviction (whether the conviction is the
person’s own or another’s); and
(b) a
conviction which has become spent or any circumstances ancillary to it, or any
failure to disclose a spent conviction or any such circumstances, shall not be
a proper ground for dismissing or excluding a person from any office,
profession, occupation or employment, or for
prejudicing the person in any way in any occupation or employment.
(3) The
States may by Regulations –
(a) make
such provisions as seem to them appropriate for excluding or modifying the
application of either or both of paragraph (1)(a) and (b) in relation to
questions put in such circumstances as may be specified in the Regulations; and
(b) provide
for such exceptions from either or both of the provisions
of paragraph (2) as seem to them appropriate, in such cases or classes of
case, and in relation to convictions of such a description, as may be specified
in the Regulations.
11 Unauthorized disclosure of spent conviction
(1) Subject
to Regulations made under paragraph (4), any person who, in the course of
his or her official duties, has or at any time has had custody of or access to
any official record or the information contained in it shall be guilty of an
offence if, knowing or having reasonable cause to suspect that any specified
information the person has obtained in the course of those duties is specified
information, he or she discloses it to another person.
(2) In
any proceedings for an offence under paragraph (1), it shall be a defence
for the defendant to show that the disclosure was made –
(a) to
the rehabilitated person or to another person at the express request of the
rehabilitated person; or
(b) to a
person whom the defendant reasonably believed to be the rehabilitated person or
to another person at the express request of a person whom the defendant
reasonably believed to be the rehabilitated person.
(3) Any
person who obtains any specified information from any official record by means
of any fraud, dishonesty or bribe shall be guilty of an offence.
(4) The
States may by Regulations make such provision as appears to them to be
appropriate for excepting from paragraph (1) the disclosure of specified
information derived from an official record, in such cases or classes of case
as may be specified in the Regulations.
(5) A
person guilty of an offence under paragraph (1) shall be liable to a fine
not exceeding level 3 on the standard scale.
(6) A
person guilty of an offence under paragraph (3) shall be liable to
imprisonment for a term of 6 months and to a fine.[12]
12 Citation
This Law may be cited as
the Rehabilitation of Offenders (Jersey) Law 2001.